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Music Industry Backtracks On HD Radio Encryption

The music industry changed its tune during recent hearings before the House of Representatives, saying copy-controlling encryption of digital AM/FM (HD Radio) broadcasts isn't likely to be workable.

Encryption would make existing HD Radios obsolete because current models and those currently under development can't be upgraded with an over-the-air download, HD Radio inventor iBiquity explained.

The Consumer Electronics Association (CEA), nonetheless, remains worried about music industry proposals to restrict the recording of digital-radio content, whether delivered by satellites or by terrestrial broadcast towers.

“All parties understand that you don't want to obsolete existing HD Radios,” said Jeff Jury, COO of iBiquity. "Everyone is now up to speed," he said.

Everyone includes Mitch Bainwol, chairman/CEO of the Recording Industry Association of America (RIAA), based on testimony last Thursday before the House Subcommittee on Courts, the Internet and Intellectual Property. “In terms of the technology by which we would solve this problem,” he said, “we're agnostic. In a perfect world, in an ideal world, you'd deal with this with encryption at the source. We understand that's probably too late, so a [broadcast] flag approach or some other approach is probably fine.”

In the days before the hearing, however, the RIAA floated draft legislation asking Congress to grant the FCC the authority to:

require encryption of HD Radio broadcasts at the source to implement usage rules,

and require satellite radio broadcasters to encrypt their signals, as they already do, to implement usage rules.

During the hearing, CEA blasted the encryption proposal, saying encryption would make existing HD Radio tuners and transmission equipment obsolete, halting the rollout of digital AM/FM technology.

“Since no encryption system [for HD Radio] currently exists, an encryption requirement would render both the transmission infrastructure and the initial radios obsolete, stopping the rollout of this new technology in its tracks,” said Michael Petricone, CEA's technology policy VP. “The rollout of terrestrial digital radio is well underway. Over 500 stations are broadcasting digitally. Thousands of radios have already been sold. More than 25,000 are forecast to be in the market by year end, with tens if not hundreds of thousands to follow in 2006,” he said in his comments to the House subcommittee. The subcommittee was exploring content-protection issues in the HDTV and digital radio industries.

“The proposal to lock down free, over-the-air radio is especially pernicious,” continued Petricone, who also testified on behalf of the Home Recording Rights Coalition (HRRC). “Unlike the video 'flag,' the proposal is aimed at stopping private and noncommercial recording of lawfully acquired content. The only apparent way to accomplish this would be through encryption.”

Petricone also blasted the RIAA, which he said “in essence” is trying to “use this Committee to leverage the satellite radio industry on the eve of negotiation for a new performance royalty. And, without saying so, RIAA is trying to gut the 'Audio Home Recording Act' written by this Subcommittee.”

Gigi Sohn, the president of public interest group Public Knowledge, agreed that imposing copy-control restrictions on HD Radio would be detrimental to the technology's rollout, whether encryption is the method used or not. The restrictions “might very well kill the fledgling technology,” she said, contending that draft legislation “would permit the FCC to extinguish the long-protected consumer right to record radio transmissions for personal use.” Because the draft would impose limits on a technology that, unlike digital TV, consumers aren't mandated to adopt, “those limits may well kill this fledgling technology. Why would consumers buy an expensive new digital broadcast radio receiver when it would have less functionality than their analog receiver?”

For his part, RIAA's Bainwol told the subcommittee that the 1992 Recording Act doesn't apply to digital radio; it was meant “to address 'serial copying' by digital audio tape recorders, not to address downloading functionality that facilitates the making of personal collections that substitute for sales,” he contended.

Bainwol also denied that the music industry wants to “change consumer expectations about how they use radio” and in fact wants to provide consumers with the same recording capabilities that they are currently allowed to enjoy. Digital-AM/FM and satellite radio listeners would “still hit a record button when they hear a song they like,” and they could engage in TiVo-like time-shifting by time, program or channel. However, Bainwol said, “We merely ask that the line be drawn at automatic searching, copying and disaggregation features that exceed the experience they, and Congress, expect from radio.”

Bainwol's comments also apply to planned MP3 headphone portables that would store time-shifted satellite radio content and allow users to select individual satellite radio songs for playback from memory.

“The convergence of radio and downloading capability, while providing great opportunities, requires changes in the law that protects against a company transforming its radio service into a distribution service without the appropriate license,” he said. “Services that operate as broadcast stations should not offer features that enable song-by-song [lists] and permanent storage in digital libraries without paying the same market prices that licensed download services pay.”

The post-1992 Digital Performance Rights Act and the Digital Millennium Copyright Act granted artists and music labels a limited performance right for music distributed by satellite radio, cable, and Internet services, which must pay a compulsory licensing fee. “To allow satellite services to establish themselves,” he explained, the laws did not impose “the full range of requirements imposed upon other digital broadcast platforms.” Non-satellite services operating under the same statutory license “are prohibited from enabling listeners to make copies of the songs broadcast in their programs,” he noted. Satellite radio companies, he continued, thus have an unfair advantage.

“It is now clear that satellite radio, especially with proposed features allowing permanent copying and disaggregation, presents the same issues as these other digital platforms and should be brought into conformity,” Bainwol said.